Tuesday, November 13, 2001
Abortion Opponent May Sue Over State College’s Ban On Religious Message, Ninth Circuit Rules
By a MetNews Staff Writer
An abortion opponent arrested during a protest at a Washington state college can sue school officials whom he claims told him he could not engage in religious discussion as part of the demonstration, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel ruled that Benjamin K. Orin may sue Olympic Community College Dean Richard Barclay and campus security chief Robert Wallace for enforcing an unconstitutional restraint on his First Amendment rights to freedom of speech and religion.
The judges, did, however, uphold the dismissal of the balance of Orin’s suit, including excessive-force and false-arrest allegations against city of Bremerton police officers.
Orin is a member of Positively Pro-Life, an anti-abortion group that demonstrates at high schools, colleges, and medical clinics around the Northwest. The group held a 1997 demonstration at the college, after Barclay told them—Orin alleges—that they were free to demonstrate as long as they did not breach the peace or cause a disturbance, interfere with school activities or access to buildings, or engage in religious worship or instruction.
After about four hours of the demonstration, which apparently provoked a heated reaction from some supporters of abortion rights, Wallace asked the protesters to leave and called police when they refused to do so. The necessity of police intervention was disputed by the parties in the litigation.
Barclay, Orin alleges, then appeared and told the protesters that if they “mentioned God or referred to th[e] Bible [he] would have[them] arrested and physically removed from campus.” Orin said he would continue to voice religious objections to abortion, and Barclay said he would be arrested, Orin claimed.
Orin alleged in the litigation that he was arrested for criminal trespass only because he refused to stop talking about religion. Barclay and the other defendants—campus security officers, police, and the city—claimed that the situation between Orin’s supporters and opponents of the demonstration had grown so hostile that police ordered the demonstrators to disperse in the interests of public safety and arrested Orin when he refused the order.
Orin sued for violation of his freedom of speech and religion, conspiracy to violate civil rights under the Ku Klux Klan Act, and false arrest and infliction of emotional distress in violation of state law.
U.S. District Judge Robert J. Bryan of the Western District of Washington granted summary judgment in favor of all defendants, ruling that the individual defendants had qualified immunity with respect to the civil rights claims and that there were no triable issues of fact with respect to any other claim.
Judge Richard Tallman, writing for the Ninth Circuit, said that Bryan was largely correct. Barclay acted within his discretion, the appellate jurist said, in adopting content-neutral restrictions barring the demonstrators from disturbing the peace or interfering with the college’s regular activities.
But if, as alleged, Barclay told the demonstrators they had to refrain from incorporating religious worship or instruction into the protest, he may have violated the First Amendment.
“Having created a forum for the demonstrators’ expression, Barclay could not, consistent with the dictates of the First Amendment, limit their expression to secular content,” Tallman said.
If Barclay is liable, Tallman added, Wallace may also be held responsible for enforcing the unconstitutional restriction. On the other hand, the judge said, if the evidence at trial shows that Wallace ordered the demonstrators to disperse solely because they were violating the no-disturbance or no-interference conditions, there would be no liability.
But the police and the city cannot be liable under any conditions, Tallman went on to say. It was undisputed, he said, that the police acted in good faith based on the belief—which they formed as a result of their discussions with Wallace—that the demonstrators were disturbing the peace.
Senior Judge Robert Boochever concurred in the result, but said he was unconvinced that the officers had probable cause to make an arrest. It appeared, he said, that they arrested Orin because his opponents were getting hostile.
“The majority cites no authority, and I am aware of none that indicates the hostile reaction of an audience to a speaker creates probable cause to arrest that speaker,” the concurring jurist argued.
Boochever said the officers were “mistaken,” but were immune because they acted reasonably in making a “split-second” judgment to defuse what they had reason to believe was a dangerous situation.
The case is Orin v. Barclay, 00-35177.
Copyright 2001, Metropolitan News Company